Vs. Union of India & Ors  Insc 739 (2 November 2006)
H. Kapadia & R. V. Raveendran
out of Special Leave Petition (Crl.) No. 3012/2006) (With W.P. (Crl.) No. 191
of 2006 (D-14072/2006) R.V. RAVEENDRAN, J.
granted in SLP (Crl.) No.3012/2006.
preventive detention of one Sandip Agarwal ('detenu' for short) under section
3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974 ('COFEPOSA Act' for short) is under challenge in these two
matters, namely, criminal appeal by special leave against the judgment dated
21.4.2006 in Writ Petition No.23908/2005 of the Calcutta High Court and a
petition seeking a writ of habeas corpus under Article 32 of the Constitution
of India. Both have been filed by the mother of the detenu.
facts, in brief, leading to the preventive detention of the detenu, as gathered
from the grounds of detention, are as follows - Sandip Agarwal, the detenu, was
the Director in-charge of the management of M/s Sandip Exports Ltd., the other
Directors being his family members. On receipt of information about
irregularities committed by the detenu, a search of the premises of Sandip
Exports Ltd. was conducted by the Directorate of Revenue Intelligence on
7.11.2003. The search and the investigations disclosed that M/s. Sandip Exports
Ltd. had obtained two Annual Advance Licences dated 28.3.2001 and 22.3.2002 on
actual user conditions from the Director General of Foreign Trade, Kolkata, as
manufacturer-exporter. The said Annual Advance Licences issued under the Duty
Exemption Entitlement Certificate Scheme ('DEEC Scheme' for short) enabled the
Licensee to import goods free of duty subject to the condition that the
Licensee shall manufacture and export products (by utilizing the imported
goods) within 18 months, the quantity and value being as specified in the licences
in terms of Customs Notification No. 48/99 dated 29.4.1999 as amended from time
to time. The detenu imported different types of polyester and silk yarn/fabric,
duty free, under the scheme by using the said licences of Sandip Exports Ltd.
The duty foregone on importations made under the said two Advance Licences was
Rs.14 crores. Instead of utilizing such imported materials in the manufacture
of products for exports, he diverted and disposed of the imported goods in the
domestic market, and did not fulfil the export obligation. He falsely claimed
that the goods for export were manufactured from out of the imported goods
through a non-existing manufacturing unit, and through alleged job-workers; and
he also falsely claimed that the products so manufactured out of goods imported
by Sandip Exports Ltd. were exported through M/s Karan Exports (India) Ltd., another company owned and
controlled by detenu's family. In this manner, the detenu indulged in a
systematic and organized import-export fraud by importing goods duty-free,
under the 'DEEC Scheme' and diverting them to domestic market.
the instance of the Directorate of Revenue Intelligence (the Sponsoring Authority),
the Detaining Authority (Government of India, Ministry of Finance, Department
of Revenue, represented by its Joint Secretary) passed an order of detention
dated 19.8.2004 under Section 3(1) of the COFEPOSA Act. In the grounds in
support of the detention order, the detaining authority stated that the action
of the detenu in diverting duty free imported goods into the domestic market in
violation of the DEEC Scheme Licences, amounted to "smuggling" of
goods. The detaining authority also stated that the nature and gravity of the
offence and the dubious and fraudulent modus operandi employed by the detenu
showed his propensity and potentiality to indulge in such illegal activities in
future, necessitating detention to prevent him from continuing such activities.
detention order could not be executed as the detenu absconded.
consequence, an order dated 29.3.2004 was issued under Section 7(1) of the Act.
On the basis of a situation report filed under Section 7(1)(a) of the Act on
26.10.2004, the Chief Metropolitan Magistrate, Calcutta, passed an order dated 18.11.2004 for proclamation by
proceeding under Section 82 Cr.P.C. The detenu filed a writ petition
challenging the order of detention.
said pre-execution challenge was rejected by the High Court on 10.6.2005.
Ultimately, on 11.11.2005, the detenu was taken into custody and the detention
order and the grounds in support of the detention were served on him. The
copies of the documents relied upon by the detaining authority in making the
order of detention, were furnished to the detenu on 14.11.2005. As the detenu
claimed that he had no working knowledge of Hindi, English translations were
furnished to him on 16.11.2005.
detenu made a representation against his detention to the detaining authority
on 25.11.2005. The said representation was rejected by the Detaining Authority
on 7.12.2005 and the same was communicated to the detenu on 13.12.2005. On
14.12.2005, the detenu's mother filed W.P. No.23908/2005 in the High Court of
Calcutta, seeking quashing of the detention order dated 19.8.2004 and release
of the detenu.
detenu made a representation to the Advisory Board constituted under the
COFEPOSA Act on 16.1.2006. The Advisory Board gave a hearing on 19.1.2006 and
recommended confirmation of the detention. On receiving a copy of the
representation to the Advisory Board along with the report of the Advisory
Board on 27.1.2006, the Central Government confirmed the detention on 1.2.2006.
The representation dated 16.1.2006, copies of which were furnished to the
detaining authority and Central Government, was also independently considered
by them. The Detaining Authority by order dated 10.2.2006 rejected the
representation of the detenu dated 16.1.2006. The Central Government (Special
Secretary and Director General, Central Economic Intelligence Bureau) also
rejected the said representation of the detenu by order dated 13.2.2006. These
orders of rejection were served on the detenu on 17.2.2006. The detenu made
another representation dated 7.2.2006 against his detention to the Central
Government. By order dated 22.2.2006 the Central Government rejected the said
representation and a copy thereof was served on the detenu on 18.3.2006.
events subsequent to filing of the writ petition were placed on record in the
pending writ petition and the order of detention was challenged on the
following grounds :
Relevant materials were withheld by the sponsoring authority from the Detaining
Detaining Authority had considered and relied on non- existent and irrelevant
material in making the order of detention.
translations of Hindi documents were belatedly supplied.
Copies of the documents which were relied upon by the Detaining Authority
furnished to the detenu, contained several sheets which were illegible thereby
preventing the detenu from making an effective representation.
There was inordinate delay in considering the representation made by the detenu
to the Central Government and serving the same on the detenu.
order of detention was based on a solitary incident. There was no material to
show that there was any possibility of the detenu indulging in smuggling
activities in future.
allegations against the detenu did not amount to 'smuggling' and therefore the
order of detention was not justified.
Division Bench of the Calcutta High Court rejected all these
contentions and consequently, dismissed the writ petition by judgment dated
said judgment of the Calcutta High Court is challenged in this appeal by
special leave. Simultaneously, the petition under Article 32 has also been
filed before this Court, challenging the detention.
Though several contentions were raised in the special leave petition and the
writ petition, during arguments the challenge to the detention was restricted
to the following three grounds:
The sponsoring authority had withheld from the detaining authority a relevant
material (Order dated 15/20.4.2004 stopping EXIM benefits to Sandip Exports Ltd
made under Rule 7 of the Foreign Trade (Regulations) Rules, 1993). The
detaining authority could not therefore apply his mind to all relevant material
before making the order of detention.
Several sheets among the copies of the documents supplied to the detenu, were
illegible and this came in the way of the detenu making an effective
representation for his release.
There was inordinate delay in considering the representation dated 7.2.2006 by
the detenu submitted to the Central Government and communicating the decision
to the detenu.
: Point No. (i)
detention under COFEPOSA Act is anticipatory and preventive. It is neither
punitive nor curative. Preventive detention being one of the two exceptions to
the constitutional protection under Article 22 against arrest and detention,
certain procedural safeguards are provided in respect of exercise of the power
to direct preventive detention. The procedural safeguards under the
Constitution have been interpreted, to require every material which is
relevant, having a bearing on the question as to whether a person should be
detained under the Act, to be placed before the detaining authority, as the
decision to detain a person is rendered by a detaining authority on his
subjective satisfaction as to the existence of the grounds for such detention.
sponsoring authority should not undertake any exercise of examination and
interpretation of the available material with a view to place the documents
selectively before the detaining authority. It is not for the sponsoring
authority to decide as to which of the relevant documents should be placed
before the detaining authority, or which of the documents are likely to help,
or not help, the prospective detenu. Consequently, the sponsoring authority cannot
exclude any particular document from the material to be placed before the
detaining authority. If the relevant facts or documents which may influence the
subjective satisfaction of the detaining authority on the question whether or
not to make the detention order, are not placed before the detaining authority,
or are not considered by the detaining authority, it may vitiate the detention
order itself. It is no answer to say that the exclusion of a relevant document
did not affect the decision to detain a person, in view of the other documents
that were placed before the detaining authority or that the detaining authority
would have come to the same conclusion even if he had considered the said
document vide Attorney General of India vs. Amratlal Prajivandas [1994 (5) SCC
54], Ashadevi vs. K. Shivraj, Addl. Chief Secretary to the Govt. of Gujarat
[1979 (1) SCC 222], Sita Ram Somani vs. State of Rajasthan [1986 (2) SCC 86]; Ayya alias Ayub vs. State of U.P. [1989 (1) SCC 374] and Ahamed Nassar vs. State of Tamil Nadu [1999 (8) SCC 473].
Let us examine the facts, keeping in view the said principles. In this case,
the detention order was made on the ground that the detenu had diverted the
goods, imported duty free for manufacture of goods for export, into domestic
market and thereby indulged in 'smuggling' as defined in section 2(39) of the
Customs Act, 1962 and the facts and circumstances showed the propensity and
potentiality on the part of the detenu to continue such prejudicial activities
in future. The grievance of the detenu is that the sponsoring authority did not
place the order dated 15/20.4.2004 of the Joint Director-General of Foreign
Trade, Kolkata (made under Rule 7 of Foreign Trade Regulation Rules 1993,
stopping the grant of all EXIM benefits to M/s Sandip Exports Limited till
finalization of the proposed action against the said company), before the
detaining authority. According to him, it was a relevant document and the
non-consideration of the said document vitiated the order of detention. The
fact that the said document was available in the records of the sponsoring
authority, but was not placed before the detaining authority, is not disputed
by the respondents. Though the High Court has referred to the contention
relating to the said document (order dated 15/20.4.2004), it did not
specifically deal with it.
document is relevant for considering the case of a person for preventive
detention if it relates to or has a bearing on either of the following two
issues : (a) Whether the detenu had indulged in smuggling or other activities
prejudicial to the State, which the COFEPOSA Act is designed to prevent; and
(b) Whether the nature of the illegal and prejudicial activity and the manner
in which the detenu had indulged in such activity, gave a reasonable indication
that he would continue to indulge in such activity. In other words, whether he
had the propensity and potentiality to continue the prejudicial activity
necessitating an order of detention.
The document in question did not prove any smuggling/prejudicial activity on
the part of the detenu. It only shows that the Department of Foreign Trade had
stopped all EXIM benefits to Sandip Exports Ltd., pending further action, as
certain illegal activities of that company had come to its notice. The said
document was, therefore, neither relevant nor necessary to decide whether the detenu
had indulged in smuggling or other prejudicial activity. The detaining
authority obtained satisfaction in regard to that aspect from the material that
was placed by the sponsoring authority to show illegal activities which
amounted to smuggling.
The said document was also not relevant to establish propensity or potentiality
of the detenu to continue his illegal activities. The export-import violations,
which amount to smuggling, involve considerable planning, organization and
establishing a network. The propensity is deducible from the modus operandi
adopted by the violator, the inclination of the violator to indulge in such
activities and the further opportunity to commit such illegal activities.
Persons indulging in such prejudicial activities routinely create 'front'
companies and firms. The fact that a particular 'front' company is denied the
EXIM benefits will not deter a violator from continuing such activities, as he
can always operate through other 'front' companies/firms.
contention of the detenu that as the said order dated 15/20.4.2004, stopped the
EXIM benefits to Sandip Exports Ltd., he could not have continued the alleged
illegal activity, and therefore, the detention order was not warranted, is
untenable. The EXIM benefits were stopped with reference to only one company
namely, Sandip Exports Ltd., and that too till finalization of further action.
The investigation and search by the Directorate of Revenue Intelligence, had
disclosed that the detenu had other 'front' companies. In fact the detention
order makes reference to a similar violation by the detenu by using M/s.
Scandia Investments (P) Ltd. which was another 'front' company controlled by
him and his family. When the benefits of illegal activity are stopped to a
particular company, the brain behind the violation, would merely shift the
operations to another 'front' company or start the activities through a new
company. It should also to be noted that whenever any irregularities/violations
in regard to export/ import comes to the attention of the department, the
benefits are stopped in the normal course, pending finalization of further
it cannot be said that the document whereby EXIM benefits to one of the
companies controlled by the detenu was stopped, was a 'relevant' document,
non-consideration of which would vitiate the detention order. The first
contention is therefore rejected.
: Point No. (ii)
is contended on behalf of the detenu that several sheets in the copies of
documents furnished to him, were illegible and that prevented him from making
an effective representation. It is submitted that the procedural safeguard
under clause (5) of Article 22 requires the grounds of detention to be
communicated to the detenu and this would mean not only the grounds but also
the documents on which reliance was placed to formulate the grounds that led to
the detention. It is further submitted that the documents required to be
furnished, should be legible and in a language known to the detenu so as to
enable the detenu to give an effective representation against the detention;
that if the documents are not legible or in a language not known to the detenu,
then it is as bad as not furnishing the documents; and that furnishing of
copies of documents is not a mere formality but an integral part of the right
of the detenu assured under the Constitution. It is contended that the order of
detention is vitiated on account of the following pages of the documents
furnished to the detenu being not legible :- Page Nos. 124-128, 160-178, 186,
254, 255, 257, 350, 352, 357, 358, 360, 362, 368-371. 371A, 371B, 493, 497,
500, 508, 510, 515, 516, 523, 534, 538, 543, 550, 551, 608, 611, 616-21,
623-37, 682-701, 745, 750, 755, 760, 765, 769-70, 777, 780, 821, 841-43,
857-65, 872, 874, 882, 884, 887 and the last page.
Dharmishta Bhagat vs. State of Karnataka [1989 Supp.(2) SCC 15], this Court has
held that 'refusal' on the part of the detaining authority to supply legible
copies of 'relevant' documents to the detenu for making an effective
representation infringes the detenu's right under Article 22(5) of the
Constitution. This Court observed :
it is imperative that the detaining authority has to serve the grounds of
detention which include also all the relevant documents which had been
considered in forming the subjective satisfaction by the detaining authority
before making the order of detention and referred to in the list of documents
accompanying the grounds of detention in order to enable the detenu to make an
effective representation to the Advisory Board as well as to the detaining
authority. Therefore, the non-supply of legible copy of this vital document i.e.
panchnama dated February
12, 1988 in spite of
the request made by the detenu to supply the same renders the order of
detention illegal and bad." In Manjit Singh Garewal @ Gogi vs. Union of
India [1990 Supp. SCC 59], this Court has held that where copies supplied at
the request of the detenu were illegible, the constitutional safeguards were
violated and the order of detention is liable to be quashed.
The High Court has examined the copies that were furnished to the detenu. In
regard to the grievance relating to illegible copies occurring between pages
493 and 887 and the last page, the High Court found that these were copies of
the documents which were supplied by the detenu himself, and the department
could do no better than to furnish the copies thereof. If the documents
furnished by the detenu to the department contained some portions or pages
which were illegible, obviously the copies thereof furnished by the detaining
authority to the detenu will also contain such illegible portions. The learned
counsel for the appellant contented that if really any document furnished by
the detenu was illegible, it could not have been used against the detenu.. But
this contention overlooks the fact that a document may contain several sheets
and illegibility of some sheets or parts of some sheets will not come in the
way of the authorities making use of the legible portions of the documents
furnished by the detenu, supplemented by other documents secured during
investigation. There is nothing strange in the department making use of
partially legible documents furnished by detenu. Therefore, illegibility of
portions of documents which are copies of documents furnished by the detenu,
cannot be a ground for grievance by the detenu. Insofar as the allegation that
some of the sheets between pages 124 to 371B were illegible, the High Court
after having gone through the copies of documents furnished to the detenu, has
found no substance in the contention. In fact, while acknowledging the copies
of documents, the detenu has made an endorsement that they were legible.
The entire issue of furnishing of illegible copies is with reference to the
question whether detenu's right to make an effective representation against his
detention is hampered by non-supply of legible copies. The High Court after an
examination of the copies of documents found that the detenu was not so
hampered. Having gone through the representations made by the detenu against
his detention, we also find that he was in no way hampered by the fact that a
few of the sheets/copies of documents were partly illegible.
therefore find no merit in the second condition, nor any reason to interfere
with the finding of the High Court in this behalf.
: Point No. (iii)
The scope of Clause (5) of Article 22 which provides that when any person is
detained in pursuance of an order made under any law providing for preventive
detention, the authority making the order shall, as soon as may be, communicate
to such person the grounds on which the order has been made and shall afford
him the earliest opportunity of making a representation against such order, has
been examined in several decisions.
the said provision, this Court in Sk. Abdul Karim vs. the State of West Bengal
[AIR 1969 SC 1028], held as follows :- "Apart from these enabling and.
disabling provisions certain procedural rights have been expressly safeguarded
by Clause (5) of Article 22. A person detained under a law of preventive
detention has a right to obtain information as to the grounds of detention and
has also the right to make a representation protesting against an order of
preventive detention. Article 22(5) does not expressly say to whom the
representation is to be made and how the detaining authority is to deal with
the representation. But it is necessarily implicit in the language of Article
22(5) that the State Government to whom the representation is made should
properly consider the representation as expeditiously as possible. The
constitution of an Advisory Board-under Section 8 of the Act does not relieve
the State Government from the legal obligation to consider the representation
of the detenu as soon as it is received by it. On behalf of the respondent It
was said' that there was no express language in Article 22(5) requiring the
State Government to consider the representation of the detenu. But it is a
necessary implication of the language of Article 22(5) that the State
Government should consider the representation made by the detenu as soon as it
is made, apply its mind to It and, if necessary, take appropriate action. In
our opinion, the constitutional right to make a representation guaranteed by
Article 22(5) must be taken to include by necessary implication the
constitutional right to a proper consideration of the representation by the
authority to whom it is made. The right of representation under Article 22(5)
is a valuable constitutional right and is not a mere formality." In Sk.
Rashid vs. State of West
Bengal [AIR 1973 SC
824], this Court interpreting the words 'as soon as may be' occurring in clause
(5) of Article 22, held as follows :
use of the Words "as soon as may be" is important. It reflects the
anxiety on the part of the framers of the Constitution to enable the detenu to
know the grounds on which the order of detention has been made so that he can
make an effective representation against it at the earliest. The ultimate
objective of this provision can only be the most speedy consideration of his
representation by the authorities concerned, for, without its expenditious
consideration with a sense of urgency the basic purpose of affording earliest
opportunity of making the representation is likely to be defeated. This right
to represent and to have the representation considered at the earliest flows
from the constitutional guarantee of the right to personal liberty - the right
which is highly cherished in our Republic and its protection against arbitrary
and unlawful invasion.
whether or not the State Government has in a given case considered the representation
made by the detenu as soon as possible, in other words, with reasonable
dispatch, must necessarily depend on the facts and circumstances of that case,
it being neither possible nor advisable to lay down any rigid period of time
uniformly applicable to all cases. The Court has in each case to consider
judicially on the available material if the gap between the receipt of the
representation and its consideration by the State Government is so unreasonably
long and the explanation for the delay offered by the State Government so
unsatisfactory as to render the detention order thereafter illegal" In Kamleshkumar
Ishwardas Patel vs. Union of India [1995 (4) SCC 51], this Court observed thus
:- "Construing the provisions of Article 22(5) we have explained that the
right of the person detained to make a representation against the order of
detention comprehends the right to make such a representation to the authority
which can grant such relief, i.e., the authority which can revoke the order of
detention and set him at liberty and since the officer who has made the order
of detention is competent to revoke it, the person detained has the right to
make a representation to the officer who made the order of detention. The first
premises that such right does not flow from Article 22(5) cannot, therefore, be
accepted." This Court has also repeatedly held that though there can be no
specific or mechanical test for determining whether there has been undue delay,
where there is an unexplained delay in either making the order or serving the
order, it would vitiate the order of detention.
The order of detention states that detenu can make representations to
Central Government, and
Advisory Board, in regard to the detention.
has a constitutional as also statutory right to make a representation against
detention not only to the Detaining Authority but to any authority which can
revoke the order of detention. He can also represent to the Advisory Board
constituted under section 8 of COFEPOSA Act. Such representations no doubt
should be disposed of by the concerned authority as early as possible. The fact
that the Detaining Authority or the Advisory Board have rejected the
representation of the detenu does not discharge the Central Government from its
responsibility to consider and dispose of the representation expeditiously.
The grievance of the detenu is in respect of the representation to the Central
Government on 7.2.2006 which was rejected by the Central Government and the
detaining authority, by two separate orders dated 22.2.2006. The Central
Government in its counter-affidavit has satisfactorily explained how the time
between 7.2.2006 and 22.2.2006 was spent. But the said orders dated 22.2.2006
rejecting the representation was served on the detenu only on 18.3.2006. The
reason why the rejection orders dated 22.2.2006 were not served till 18.3.2006
on the detenu remains unexplained.
fact the respondents have admitted this unexplained delay in their counter filed
in this Court. We extract below the relevant portion :- "In this
connection, it is submitted that the Superintendent, Presidency Correctional
Home, Kolkata was requested to serve the original of the said two memorandums
on the detenu and obtain signature thereon which he did on 18th March, 2006. IG
(Prisons) and Chief Secretary, Government of West Bengal, have been asked to
look into the circumstances leading to delayed submission of rejection memos to
The grievance of the detenu is in regard to the delay in communicating the
decision dated 22.2.2006 of the Central Government till 18.3.2006. The learned
counsel for the respondent however relied on the decision of this Court in
Abdul Razak Dawood Dhanani vs. Union of India [2003 (9) SCC 652], to contend
that delay on the part of the Central Government in considering the detenu's
representation or the delay in communication of such decision on the detenu
will not be material, where the Central Government has already considered the
representation of the detenu and rejected it and what is delayed is the
decision on the second representation. In that case, the representation dated
12.4.2002 given by the detenu to the three authorities namely, Advisory Board,
Detaining Authority and Central Government were rejected respectively by orders
dated 19.4.2002, 06.5.2002 and 08.5.2002. In addition to the first
representation dated 12.4.2002, the detenu had submitted a further
representation dated 19.4.2002 to the Central Government and the grievance was
that the second representation had not been disposed of by the Central
Government by a separate order. This Court rejected the contention on the
ground that the second representation dated 19.4.2002 contained the same
grounds and same material as contained in the first representation dated
12.4.2002 and in the absence of any fresh ground or material or subsequent
event justifying the consideration of the second representation, the Central
Government was not bound to pass separate order disposing of the second
representation. The ratio of that decision squarely applies to this case.
this case we find that the first representation dated 16.1.2006 was disposed of
by the Advisory Board, Detaining Authority and Central Government on 27.1.2006,
10.2.2006 and 13.2.2006. The second representation dated 7.2.2006 given to the
Central Government is nothing but a reiteration of the representation that was
given to the Advisory Board on 16.1.2006 copies of which were given to
detaining authority and Central Government. The representation dated 16.1.2006
had already been considered and rejected by the Central Government by order
dated 13.2.2006. Therefore applying the principle in Abdul Razak Dawood Dhanani
(supra), any delay in disposing of the subsequent representation dated 7.2.2006
or any delay in communicating the decision on such representation will not
vitiate the order of detention. The third contention is also therefore
a result, we dismiss the appeal as also the writ petition as having no merit.